.Tust, ioe  and  ""xeedow 
In  dun;  try 


Justice  and  Freedom  for 
Industry 

By 

William  Howard  Taft 


Digitized  by  the  Internet  Archive 
in  2016 


https://archive.org/details/justicefreedomfo01taft 


Justice  and  Freedom  for  Industry 

By  WILLIAM  HOWARD  TAFT 


IT  is  easy  to  fix  one’s  attention  on  what  seems  to  be  an  abuse 
and  to  attack  it  with  such  an  emphasis  as  to  make  it  stand  out 
in  a bold  and  bald  and  naked  form,  without  the  proper  shading 
and  without  a statement  of  mitigating  circumstances.  What  one 
says  may  be  true  in  letter  and  yet  because  of  the  failure  to  note 
the  other  side  may  be  unjust  and  false  in  spirit  and  effect.  On 
any  issue  which  affects  the  vital  interests  of  classes  in  a com- 
munity, we  must  expect  such  partisan  statements,  and  we  must 
realize  the  difficulty  of  getting  at  a truthful  and  judicial  sum- 
ming up  of  the  controversy  and  a just  conclusion.  Not  only  is 
the  problem  of  reaching  the  truth  a difficult  one  in  itself,  but  it 
is  also  attended  by  embarrassment  that  in  such  a heated  con- 
troversy the  one  who  seeks  the  median  line  and  to  hold  the 
balance  even,  is  generally  condemned  by  both  sides  for  his  pains. 


Competition  Essential  to  Progress 

This  general  observation  as  to  all  controversies  finds  a most 
noteworthy  illustration  in  the  continuing  issue  between  capital 
and  labor.  Our  present  society  with  the  institutions  of  personal 
freedom,  civil  liberty,  and  private  property  finds  its  moving  and 
basic  spirit  in  competition.  Without  this  we  would  make  no 
progress.  Without  this  the  prudential  virtues,  industry,  effort, 
self-restraint  would  all  abate  and  retrogression  would  take  the 
place  of  progress.  Between  those  who  control  capital  there 
must  be  competition  in  some  form,  or  its  use  will  cease  to  be 
directed  in  the  spirit  of  wisdom,  energy  and  progressive  in- 
genuity. The  spirit  of  competition  in  the  reduction  of  the  cost 
of  production  has  led  to  great  combinations  of  the  small  con- 
tributions of  capital  from  the  many  who  have  saved,  in  a reser- 
voir to  be  controlled  by  the  comparatively  few  leaders.  This 
principle  of  combination  has  given  great  power  to  the  leaders 
and  at  times  they  have  been  intoxicated  with  the  lust  for  greater 
power  and  an  absolute  control  of  capital  in  different  lines  of  in- 
dustry and  the  elimination  of  competition.  This  is  an  excessive 
use  of  their  power  and  needs  curbing,  and  the  Anti-Trust  Law 
was  enacted  to  prevent  this  abuse.  There  can  be  an  excessive 
spirit  of  competition  and  that  rule  or  ruin  policy  which  is  both 

3 


suicidal  for  those  who  initiate  it  and  destructive  for  those  against 
whom  it  is  directed.  It  can  only  be  modified  by  the  common 
sense  that  prompts  self-preservation  and  the  principle  of  live 
and  let  live.  Then  there  is  a competition  between  individuals 
of  the  labor  class.  This  persists  no  matter  how  iron  the  rules 
of  the  labor  unions.  The  terms  of  employment  are  ultimately 
fixed  by  the  law  of  supply  and  demand  and  by  the  competition 
between  laborers.  Organized  labor  does  not  generally  include 
all  of  those  engaged  in  labor  even  in  skilled  trades.  Then  in  the 
fixing  of  the  union  wages  and  within  the  union  itself,  the  spirit 
of  competition  between  members  has  a necessary  influence. 

Then  there  is  competition  • betw^een  the  classes.  It  is  a 
normal  condition  that  there  should  be  an  ever-recurring  issue 
between  those  who  pay  wages  and  those  who  earn  them  as  to 
what  should  be  the  just  share  of  labor  in  the  joint  product  of 
labor  and  capital.  This  controversy  must  be  kept  within  the 
limits  of  moderation,  to  be  fixed  by  rules  of  law  and  by  the  good 
sense  of  both  sides,  prompted  by  the  consciousness  that  both 
capitalists  and  wage  earners  are  in  the  same  boat  with  the  whole 
community  and  that  continued  injustice  to  one  class  is  certain 
to  injure  the  whole  of  society.  This  controversy  must  recur 
even  when  the  beneficial  co-operative  system  of  dividend  sharing 
prevails. 

This  issue  affects  so  closely  the  interests  of  those  engaged 
in  it,  we  must  expect  an  exhibition  of  intense  partisanship,  and 
we  must  expect  also  a pressing  upon  the  limits  of  law  and  com- 
m.on  sense  in  the  effort  of  each  side  to  secure  what  it  deems  its 
right. 


Purposes  of  the  Clayton  and  Trade  Commission  Acts 

A consideration  of  the  Clayton  Act  and  of  the  Trade  Com- 
mission Act,  which  are  really  to  be  taken  together,  and  a dis- 
cussion of  their  legal  effect  and  of  their  wisdom  and  expediency, 
necessarily  involve  the  issues  growing  out  of  this  competition 
between  capitalists  and  its  effect  upon  the  public  weal,  of  the 
competition  between  laborers  and  its  effect  upon  the  freedom 
and  effectiveness  of  labor  and  the  better  condition  of  the  indi- 
vidual laborer,  and  of  the  struggle  between  capital  and  labor  in 
the  effort  to  settle  the  share  of  their  joint  product.  What  I 
would  like  to  do  tonight  is  to  give  as  nearly  a judicial  expression 
upon  these  issues  as  one  can  who  is  neither  a capitalist  nor  a 
wage  earner,  and  who  thinks  he  has  at  heart  the  welfare  of 
society.  As  I have  already  indicated,  an  attempt  to  do  this  will 
arouse  criticism  by  those  engaged  in  the  management  of  capital, 
that  a man  who  has  not  been  in  business  has  no  practical  knowl- 
edge making  valuable  his  views  of  laws  concerning  business. 
The  criticism  by  the  leaders  of  wage  earners  will  be  that  it 
is  the  expression  of  one  affected  by  class  consciousness,  though 

4 


just  exactly  what  class  it  is  of  which  one  is  conscious  may  be 
doubtful.  We  usually  find  in  such  heated  denunciation  that 
class  consciousness  is  intended  to  describe  an  absence  of  the  par- 
tisan spirit  which  the  denouncer  has.  While  the  attitude  of 
hostility  of  both  sides  toward  a judicial  expression  may  weaken 
its  influence,  at  the  same  time,  it  may  be  significant  of  its  justice. 

The  first  thing  to  be  noticed  with  respect  to  the  Clayton  Act 
and  the  Trade  Commission  Act  is  that  it  reaffirms  the  Anti-Trust 
Act.  Section  7 of  that  Act  in  denouncing  certain  Acts  intended 
to  lessen  competition  contains  the  proviso  that: 

“Nothing  in  this  section  shall  be  held  or  construed  to  author- 
ize or  make  lawful  anything  heretofore  prohibited  or  made  illegal 
by  the  Anti-Trust  Laws,  nor  to  exempt  any  person  from  the  penal 
provisions  thereof  or  the  civil  remedies  therein  provided.” 

And  Section  11  of  the  Trade  Commission  Act  is: 

“Nothing  contained  in  this  Act  shall  be  construed  to  pre- 
vent or  interfere  with  the  enforcement  of  the  provisions  of  the 
Anti-Trust  Acts  or  the  Acts  to  regulate  commerce,  nor  shall  any- 
thing contained  in  the  Act  be  construed  to  alter,  modify  or  repeal 
the  said  Anti-Trust  Acts  or  the  Acts  to  regulate  commerce  or  any 
part  or  parts  thereof.” 

Now  there  is  a studied  effort,  by  gentlemen  who  are  de- 
fendants in  pending  suits  under  the  Anti-Trust  Act,  to  discredit 
the  beneficial  effect  of  that  Act,  to  hold  it  up  to  criticism,  to  make 
it  responsible  for  depression  in  business,  and  to  attack  it  as  an 
archaic  effort  to  prevent  material  progress.  The  arguments 
that  these  gentlemen  advance,  and  the  plea  for  co-operation  in- 
stead of  competition,  are  nothing  but  a euphemistic  defense  of 
bringing  our  whole  industrial  system  again  under  the  monopo- 
listic control  of  a few  managers,  with  the  inevitable  result  that 
we  must  regulate  this  monopoly  by  national  direction,  involving 
price-fixing  and  as  complete  control  of  all  business  as  we  now 
have  over  interstate  railroads.  To  this  I am  utterly  opposed. 
While  I concede  that  the  public  nature  of  the  function  which  the 
railroads  of  the  country  perform  involves  in  some  degree  a neces- 
sary monopoly  under  public  franchise,  and  therefore  requires 
regulation,  we  must  all  concede  that  the  duty  assumed  by  the 
Government  and  discharged  by  the  Interstate  Commerce  Com- 
mission is  one  that  is  imperfectly  performed,  and  frequently  re- 
sults in  injustice,  and  an  injurious  constraint.  If  now  we  were 
to  extend  such  Governmental  control  to  all  the  lines  of  business 
industry  which  are  not  dependent  upon  public  franchise  and  at- 
tempt to  regulate  in  minute  detail  that  business,  and  fix  prices, 
our  machinery  would  break  down,  because  of  the  immense  field 
to  be  covered  and  the  inherent  difficulty  of  substituting  the  arbi- 
trary judgment  of  men  for  the  inexorable  operation  of  economic 
law.  The  anti-trust  law,  as  it  is  enforced  today,  is 
the  result  of  a construction  of  20  years  by  a wise,  patriotic 
and  impartial  tribunal,  the  greatest  in  the  world,  a tribunal  which 


a 


has  had  the  benefit  of  the  experience  of  20  years  in  the  life  of 
the  law,  and  which  gives,  in  its  construction  of  the  law,  proper 
weight  to  the  effect  of  dominant  and  well  settled  public  opinion 
demanding  its  enactment  and  stimulating  its  enforcement.  An 
agitation  to  secure  its  repeal  and  a return  to  the  conditions  of 
industry  under  monopolistic  control  before  it  was  made  effective 
by  the  construction  of  the  courts,  is  utterly  futile  and  will  meet 
no  success  with  any  Congress  that  represents  the  people  in  its 
action ; and  certainly  not  at  the  instance  of  those  whose  conduct 
of  their  business  has  invoked  Governmental  action  because  of 
their  alleged  violation  of  the  law’s  restrictions.  It  is  not  too 
much  to  say,  therefore,  that  the  Clayton  Act  and  the  Trade  Com- 
mission Act,  in  so  far  as  they  confirm  the  Anti-Trust  Act,  are  only 
expressing  the  opinion  of  all  but  comparatively  few. 


Legislative  Hostility  to  Business  Success 


My  objections  to  the  Clayton  Act  and  the  Trade  Commis- 
sion Act  are  that  their  enactment  with  such  a blare  of  trumpets 
and  avowals  of  hostility  to  capital  in  general,  with  little  discrimi- 
nation, had  a strong  tendency  to  frighten  those  whose  judgment 
determines  the  amount  of  new  investments  of  capital,  and  thus  to 
restrict  the  normal  expansion  in  our  business  due  to  the  reinvest- 
ment of  earnings.  It  is  a mistake  to  suppose  that  capital  is  all 
owned  by  rich  men.  It  is  made  up  chie%  of  the  savings  that 
flow  into  the  great  reservoirs  of  savings  banks,  life  insurance 
companies,  trust  companies,  into  the  stock  of  railroad  enter- 
prises and  industrial  corporations ; and  the  very  large  percent- 
age of  the  total  capital  invested  is  owned  by  wage  earners,  earn- 
ers of  salaries,  and  men  of  small  or  moderate  means,  who  use 
these  agencies  to  secure  profit  for  their  savings  and  a reward 
for  their  prudence  and  self-restraint.  It  is  true,  however,  that 
in  giving  effect  to  the  principle  of  combination  the  control  of 
these  reservoirs  of  capital  and  the  reinvestment  of  its  profits  on 
invested  capital,  are  more  or  less  subject  to  the  judgment  of  the 
comparatively  few  to  whose  custody  and  management  the  reser- 
voirs are  entrusted.  The  aftermath  of  a crusade  and  great  re- 
form in  our  political  and  business  condition  and  a rescue  of  the 
country  from  the  dangers  of  plutocracy  is  excessive  hostility  in 
legislative  expression  to  success  in  business  and  to  those 
who  control  capital.  The  hostility  has  been  manifested  in 
all  sorts  of  restrictions,  unwise  and  useless,  and  the  enact- 
ment of  further  restraints  in  the  Clayton  Act  and  in  the  Trade 
Commission  Act  were  much  more  detrimental  to  the  business  in- 
terests of  the  country  in  frightening  investment  than  in  any  real 
effect  after  they  shall  have  passed  the  scrutiny  of  the  courts 
and  their  essence  has  been  disclosed  in  the  test  of  actual  liti- 
gation. There  was  in  their  enactment  a political  motive  that 
prompted  the  claim  on  the  part  of  those  who  voted  for  them 

6 


that  they  were  much  more  radical  than  they  are.  A close  exami- 
nation of  the  Clayton  Act  shows  that  while  it  divides  up  the 
offenses  denounced  by  the  Anti-Trust  Act,  into  a variety  of  details, 
it  really  adds  but  little  in  its  practical  restriction  of  methods  of 
conducting  business  and  the  freedom  of  combination  and  the 
freedom  of  competition.  It  adds  a useful  provision  to  the  law 
in  denouncing  as  a Federal  crime  the  looting  of  interstate  rail- 
roads by  reckless  promoting  directors  charged  with  the  duty  of 
honest,  careful  management  in  the  interests  of  their  stockholders 
and  the  public,  offenses  which  had  theretofore  been  denounced 
only  by  State  laws.  The  bringing  of  this  offense  within  Federal 
jurisdiction,  because  of  the  greater  certainty  of  enforcement  in  the 
Federal  courts,  will  make  less  likely  such  mismanagement  as 
that  Which  has  been  disclosed  to  the  country  in  a number  of  our 
great  railway  corporations. 


Trade  Commission  Act  Attempts  the  Impossible 

In  the  Trade  Commission  Act  a Federal  executive  tribunal 
has  been  created  whose  duty  it  is  to  keep  under  detailed  obser- 
vation the  entire  industrial  and  commercial  business  of  the  coun- 
try, other  than  that  of  interstate  railroads,  and  wherever  it 
detects  unfair  methods  of  competition,  to  summon  the  perpetra- 
tors before  it  on  charges,  to  give  a hearing  to  make  a finding  of 
facts  and  conclusions  of  law,  and  to  issue  an  order  to  correct 
such  methods,  and  then,  if  their  conclusions  are  disputed  and 
their  order  is  disobeyed,  to  submit  the  record  to  the  courts  for  a 
consideration  of  the  legality  of  the  order.  There  are  two 
thoughts  that  occur  to  one  in  respect  to  this  provision  of  this 
new  legislation.  One  is  that  the  field  committed  to  the  jurisdic- 
tion of  this  Federal  Executive  tribunal  is  so  wide,  indeed  so 
much  wider  than  that  of  the  Interstate  Commerce  Commission, 
which  is  already  weighted  down  with  its  duties,  that  the  Act 
essays  to  do  something  that  is  utterly  impossible  of  performance. 
This  will  be  seen  more  clearly  to  be  true  when  we  consider  that 
everything  that  it  has  to  do  must  be  subjected  to  the  courts  be- 
fore it  has  in  any  degree  effective  sanction  and  enforcement. 
We  all  remember  how  the  interstate  commerce  jurisdiction 
utterly  failed  when  it  was  obliged  to  submit  its  orders  and  its 
judgments  to  a court  and  ask  judicial  enforcement  involving 
further  controversy  and  delay  of  several  years. 

Second,  the  Commission  is  given  power  to  determine  whether 
in  interstate  business  covering  this  wide  field,  particular  methods 
of  competition  are  unfair.  If  this  is  intended  to  authorize  the 
Commission  to  formulate  new  restrictions  upon  business,  which  in 
its  judgment  ought  to  be  restrained,  it  is  certainly  a delegation  of 
legislative  authority  which  Congress  has  no  Constitutional  power 
to  delegate  to  it.  It  is  reasonable  to  suppose  that  when  the  court 
comes  to  determine  what  an  unfair  method  of  competition  is, 

7 


it  will  look  to  the  rules  of  law  and  to  the  statutes  of  the  United 
States  for  guidance,  and  it  will  keep  the  Trade  Commission  with- 
in the  path  thus  limited.  In  other  words,  what  the  Trade  Com- 
mission will  have  to  do  is  to  confine  itself  in  determining  the  ex- 
istence of  unfair  methods  of  competition  to  those  which  violate 
our  present  law;  that  is,  to  the  restrictions  of  the  Anti-Trust  Act. 
It  becomes,  therefore,  nothing  but  a tribunal  of  investigation  for 
reporting  facts  and  the  application  of  the  law  which  can  only  be 
made  by  the  confirmation  of  the  court.  In  other  words,  it  is 
nothing  but  a glorified  bureau  of  corporations  with  larger  sal- 
aries and  greater  powers  of  investigation.  It  is  fortunate  that 
the  power  thus  conveyed  is  not  really  larger,  because  the  stand- 
ing and  national  reputation  of  the  men  who  have  been  appointed 
to  fill  these  large  salaried  positions  as  members  of  the  Board  are 
not  such  as  to  give  great  public  confidence  in  their  experience 
or  judgment.  Not  one  of  them  can  be  said  to  have  had 
national  standing  as  a business  man,  or  as  a lawyer;  and 
while  the  standard  suggested  for  this  Commission  when  its 
creation  was  recommended  was  that  of  judges  of  our  National 
Supreme  Court,  I regret  to  say  that  it  has  not  been  met  in  the 
actual  selection  of  the  Board.  While,  therefore,  the  powers  of 
the  Board  will  not  in  my  judgment  under  the  construction  of  the 
courts  prove  to  be  as  formidable  as  they  were  heralded  to  be 
by  those  who  passed  the  Act  and  those  who  proclaimed  a new 
freedom  in  business,  the  thundering  in  the  index,  together  with 
the  passage  of  the  Act,  has  had  the  result  of  making  capital  more 
timid,  of  restraining  investment,  of  decreasing  the  wage  fund, 
and  of  throwing  upon  those  least  able  to  bear  it  the  burden  of 
business  depression.  The  Act,  moreover,  does  furnish  to  these 
Trade  Commissioners  inquisitorial  powers  of  very  doubtful  wis- 
dom and  utility. 

The  fourth  amendment. to  the  Federal  Constitution,  passed 
at  the  instance  of  Thomas  Jefferson,  contains  the  provision 
that — 

“The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers  and  effects  against  unreasonable  searches  and 
seizures  shall  not  be  violated.” 

That  amendment  recognizesi  a principle  of  government 
that  had  approved  itself  to  the  British  people  and  was  con- 
firmed by  the  American  people  in  the  framing  of  their  Consti- 
tution. Now  while  it  is  quite  possible  that  the  provisions  of 
the  Trade  Commission  Act  ma)’-  not  be  of  such  a character  as 
to  violate  this  constitutional  guaranty,  they  do  have  a ten- 
dency to  bring  about  the  evil  against  which  this  amendment 
was  directed.  We  have  heard  a great  deal  about  pitiless  pub- 
licity, and  we  have  noted  the  eagerness  with  which  legislators 
rush  into  investigations  for  political  purposes  and  at  public 
expense.  The  history  of  the  investigations  by  the  Democratic 
House  of  the  last  Administration,  if  anyone  had  the  time  to 


summarize  it,  would  show  a waste  of  public  money,  a waste 
of  Governmental  efficiency  and  a series  of  personal  injustices 
done  through  the  instrumentality  of  partisan  investigation 
that  would  bring  to  the  minds  of  judicious  men  the  importance 
of  not  going  to  extremes  in  the  inquisitorial  methods  for  the 
investigation  of  private  business  to  which  this  Trade  Com- 
mission Act  tends.  Fear  of  the  excessive  and  unjust  use  of  this 
innovation  in  the  law  is  a legislative  cause  for  alarm  to  the  busi- 
ness interests  of  the  country.  On  the  whole,  however,  my  own 
judgment  is  that  the  Clayton  Act  and  the  Trade  Commission  Act 
add  very  little  to  the  effectiveness  of  the  Anti-Trust  Act. 

One  of  the  greatest  objections  to  them  is  the  construc- 
tion and  effect  of  the  anti-trust  law  have  been  settled  by 
twenty  years  of  litigation  and  consideration  by  the  Supreme 
Court,  and  they  will  now  require  another  decade  of  litigation 
to  show  that  they  have  not  added  to  the  scope  or  material 
effect  of  that  Act. 

Clayton  Act  was  Passed  for  Political  Reasons 

The  Clayton  Act  deals  also  with  the  controversy  between 
capital  and  labor.  Into  that,  controversy,  by  reason  of  its 
history,  the  power  of  the  Federal  Courts  to  issue  injunctions, 
to  protect  business  and  property  against  unlawful  invasion 
necessarily  thrusts  itself.  The  Clayton  Act  has  done  a good 
thing  in  formulating  the  proper  procedure  in  the  issuing  of 
preliminary  injunctions  without  notice  in  all  cases  where  such 
extraordinary  remedy  is  needed.  Its  provisions  with  respect 
to  the  violations  of  the  Anti-Trust  Act  by  labor  organizations 
and  agricultural  associations  have  been  proclaimed  as  a great 
charter  for  the  freedom  of  labor  in  its  controversy  with  capi- 
tal. It  was  passed  for  political  purposes,  to  satisfy  the  de- 
mands of  the  leaders  of  the  American  Federation  of  Labor, 
with  the  hope  of  securing  the  vote  of  the  labor  organizations 
at  subsequent  elections.  The  vote  of  every  member  of  Con- 
gress and  of  the  Senate  was  noted,  and  those  who  were  ad- 
verse were  marked  down  as  unfair  to  labor  and  were  threat- 
ened with  punishment  by  members  of  the  labor  unions  at  the 
polls.  I do  not  object  to  this  holding  members  of  Congress 
and  of  Senators  to  a responsibility  for  their  votes.  It  is  the 
right  of  every  American  citizen  to  demand  of  his  representa- 
tive that  he  shall  conform  to  his  views  of  national  policy  or 
else  lose  his  support  whenever  he  seeks  a renewal  of  his  man- 
date of  representation.  What  I do  object  to  is  the  cowardice 
of  representatives  who  yield  their  own  ■ convictions  as  to  how 
they  ought  to  vote  on  such  measures  in  fear  of  the  organized 
power  of  the  unions  in  their  respective  districts  and  States. 
What  I also  object  to  is  the  hypocrisy  and  unfairness  in  denounc- 
ing the  legitimate  use  of  arguments  by  other  classes  in  the  com- 
munity to  induce  members  of  Congress  and  Senators  to  favor  or 

9 


oppose  legislation  in  which  such  classes  are  interested  by  proper 
organization  and  proper  arguments  as  “vicious  lobbies”  to  be  con- 
demned without  stint.  Nothing  is  so  unfair  and  unwise  as  to  en- 
act legislation  that  seriously  affects  the  property  and  business  in- 
terests of  a class  without  giving  to  that  class  the  fullest  op- 
portunity to  be  heard,  whether  their  cause  is  a just  one  or 
not,  and  whether  their  interests  are  opposed  to  the  public  weal 
or  not.  It  is  begging  the  question  and  assuming  a conclusion 
before  hearing  to  denounce  every  activity  in  bringing  their 
interests  to  the  attention  of  Congress,  by  attacking  them  with 
an  epithet  and  denying  them  a hearing  by  a muckraking  de- 
nunciation of  their  motive. 

Violations  of  Anti- Trust  Act  Still  Punishable 

I have  not  time  to  state  in  detail  the  effect  of  the  Clayton 
Act  upon  the  remedies  which  may  be  resorted  to  in  contro- 
versies between  capital  and  labor,  to  constrain  the  methods 
used  by  either  side  in  the  controversy  within  lawful  limits. 
I can  only  state  shortly  that  in  my  judgment,  after  a close 
examination  of  the  Act,  especially  of  Section  6,  and  the  limita- 
tions upon  the  cases  in  which  injunctions  can  issue  in  labor 
disputes,  that  a labor  organization  or  an  agricultural  associa- 
tion which  violates  the  Anti-Trust  Act  by  injury  to  business  or 
property  of  the  employer,  by  violence  or  crime,  or  by  the  use 
of  what  is  called  the  compound  boycott  (that  is,  by  bringing 
into  the  controversy  material-m.en  and  customers  through 
threat  of  boycott  against  them  unless  they  cease  association 
with  the  employer),  are  still  subject  to  civil  action,  equitable 
restraint  or  criminal  prosecution  under  the  Anti-Trust  Act.  The 
case  of  Loewe  against  Lawler,  known  as  the  Danbury  Hat- 
ters’ case,  in  my  judgment  would  have  had  exactly  the  same 
result  under  the  existing  legislation  as  it  had  under  the  Anti- 
Trust  Law  before  it  was  supplemented  by  the  Clayton  Act.  In 
cases  brought  by  individual  employers  seeking  injunction,  con- 
tempts of  the  order  of  injunction  are  to  be  tried  by  a jury 
where  that  which  is  restrained  is  a crime ; but  where  it  is  not 
a criminal  offense,  the  procedure  as  to  contempts  remains  the 
same  as  before.  Where  the  action  is  brought  by  the  Govern- 
ment to  restrain  violation  of  the  Anti-Trust  Act,  the  procedure 
in  contempts  is  in  all  cases  exactly  as  it  always  was.  The 
practice  which  was  followed  in  the  Debs  case,  i.  e.,  a hearing 
without  a jury,  would,  if  the  Debs  case  were  to  re-occur,  be 
followed  today. 

This  limited  effect  of  the  Clayton  Act  is  satisfactory  to 
those  who  are  in  favor  of  complete  remedies  for  any  wrong 
whether  committed  by  labor  unions  or  by  employers.  The 
effect  may,  however,  not  be  seen  clearly  until  the  courts  have 
had  occasion  to  construe  the  Act.  The  evil  of  the  excessive 


lo 


claims  as  to  the  effect  of  the  Act  which  its  political  promoters 
have  made,  will  'be  found  in  the  attacks  made  upon  the  courts 
for  their  proper  construction  of  the  language  used.  The  claim- 
ants  of  political  favor  of  labor  unionists  based  on  the  passage 
of  the  Act  will  be  loudest  in  such  attacks. 


Union  Labor  Leaders  Intoxicated  with  Power 

The  power  that  the  leaders  of  the  American  Federation  of 
Labor  exercise  has  become  excessive  and  detrimental  to  the  public 
weal  and  the  good  of  society,  and  especially  of  that  of  the  m.em- 
bers  of  the  labor  unions.  I fully  approve  the  principle  of  labor 
unions.  I believe  that  they  are  essential  in  creating  a state  of 
equality  of  dealing  between  employees  and  employers.  I believe 
that  they  have  made  possible  the  enactment  of  a great  deal  of 
most  healthful  and  useful  legislation  and  have  greatly  aided  the 
just  cause  of  wage  earners  in  this  regard.  But  the  power  their 
leaders  have  acquired  by  the  principle  of  combination  in  their 
organization  has  intoxicated  them,  and  they  have  exercised  a 
tyranny  over  society  and  over  their  own  members  that  is  certainly 
leading  to  a reaction  and  to  a restraint  of  their  great  powers 
within  proper  and  lawful  limits.  They  have  failed  to  condemn  in 
any  way  as  they  ought,  the  use  of  criminal  methods  to  which  in 
a lawless  spirit,  their  representatives  at  various  times  have  seen 
fit  to  resort.  They  have  raised  large  funds  in  the  defense  of 
men  who  have  proven  to  be  by  their  own  confessions,  violators 
of  the  criminal  law,  and  they  have  manifested  a desire  to  secure 
in  express  statutory  declarations,  an  immunity  for  labor  unions 
from  the  operation  of  general  laws  that  should  be  uniform.  In 
other  words,  they  have  sought  to  make  themselves  and  their  agents 
a privileged  class,  not  subject  to  the  laws  that  affect  every  other 
man,  and  even  themselves  when  not  engaged  in  labor 
disputes.  We  must,  of  course,  concede  that  many  of  the 
leaders  would  be  glad  to  utter  protests  and  interfere  with  these 
illegal  methods  that  have  been  pursued,  but  there  are  politics 
within  labor  unions  and  labor  union  conventions,  and  the  loudest 
and  most  violent  extremists  are  too  often  elements  to  be  reckoned 
with  in  maintaining  the  leadership  of  such  unions.  The  quiet, 
sensible,  conservative  members  of  the  union,  of  whom  there  are 
many  more  than  we  realize,  do  not  exercise  the  influence  to 
which  their  numbers  would  often  entitle  them.  Such  members 
manifest  their  opinions  in  elections  where  in  the  secrecy  of  the 
election  booth  they  vote  their  real  opinions  and  often  refuse 
to  obey  the  formal  declarations  of  political  policy  made  under  the 
influence  of  the  conspicuous  labor  leaders. 

The  case  of  Loewe  vs.  Lawler  in  the  sequel  to  the  judg- 
ment has  much  significance.  One  hundred  and  eighty-six  de- 
fendants with  their  houses  and  earnings,  subject  to  the  satisfac- 
tion of  a judgment  for  more  than  $250,000,  are  now  appealing 


II 


to  the  United  Hatters’  Union  and  to  the  American  Federation 
of  Labor,  who  spurred  them  on  to  their  lawless  methods,  to  aid 
them  in  the  payment  of  the  result  of  this  law  suit  which  was 
vigorously  defended  at  the  instance  of  the  leaders  of  these  or- 
ganizations, in  the  avowed  interest  of  organized  labor.  Neither 
the  Hatters’  Union  nor  the  American  Federation  of  Labor  is 
willing  to  raise  a fund  to  relieve  these  i86  victims  of  their  mis- 
guided urging  although  they  could  and  did  raise  funds  quite  as 
large  for  the  defense  of  criminals  who  subsequently  confessed 
their  crimes  committed  in  the  supposed  upholding  of  the 
interests  of  labor.  Such  a condition  can  not  but  have 
a useful  influence  in  bringing  to  the  attention  of  the  rank  and 
file  of  organized  labor,  the  necessity  for  restraining  their 
leaders  in  such  unwise  defiance  of  the  law,  and  in  confining 
themselves  to  wise,  moderate  and  lawful  methods  of  maintain- 
ing their  cause  against  the  opposing  interests  of  capital  and  em- 
ployers. 

What  is  needed  to  produce  a sobering  effect  upon  the  trucu- 
lent labor  leaders,  intoxicated  with  their  sense  of  political  power, 
is  political  courage  on  the  part  of  those  who  seek  to  represent  the 

people  in  legis’'^’ ^cc.^ — „ r„ii  ^„a 

cussion  of  sue'  >n- 

gress  and  the  ™ )n, 

when  in  such  i>ate  IXue  ue 


